I. Legislation enacted by the Castro Regime; direct and total control of the Registries by the Minister of Justice
The first laws of the Cuban government that took power on January 1, 1959, enacted legislation which not only acknowledged the existence of the Registry of Property, but also included provisions which could only be enforced through such Registry. The Law of Agrarian Reform of 1959 1 created a Rural Property Section in each Registry to record “every entry regarding rural properties, starting from the date to be determined in the legal regulations regarding how said Section shall operate.” 2 Such regulations were never enacted and therefore the afore-mentioned Section never existed. The Law of Urban Reform enacted in 1960 3 did not mention either the Notaries or the Registry of Property but a resolution adopted by the Urban Reform Superior Council a few days later 4, granted to the titles issued by same Council the same evidentiary value as the rest of the documents already recordable in the Registry of Property. Another resolution of this Council 5 reiterated that all such titles must be recorded in the Registry. This 1965 legislation and resolutions of the Council were enforced only temporarily and partially regarding urban properties situated in the city and province of Havana. Such recordations were made in the Registry of Property books transferred to the offices of the Ministry of Justice. The reason for such reduced application was the lack of “efficiency which would have been necessary to provide such service.” 6
In 1965 Law No. 1180 was enacted 7 reducing to a minimum level the scope of the Registry of Property. The preamble of the Law states “that the transformation of the economic foundation of the Revolution and the transit toward the integral establishment of Socialist measures require the adoption of Legislative provisions so that the Registries of Property and the General Archives of the [Notarial] protocols which now do not have the importance that they have in the capitalistic system be structured in a way adequate to fulfill the functions which they still have to perform”. [italics are ours]
Law No. 1180 radically reformed the Registries of Property and granted to the Minister of Justice extraordinary powers which before its promulgation corresponded to the Congress and substantially amended the norms regarding the Registries of Property and the Registrars as provided by the Mortgage Law of 1893. Thus, in paragraph (a) of Art. 1 the Minister of Justice was authorized to divide the present Registries or to merge several of them and to regulate the organization and functioning of their Sections. Those powers were the equivalent of allowing the Ministry to disregard the provisions of the Mortgage Law. In spite of its brevity, and construing it in relation to the rest of the Legislation, it is evident that the aforementioned Law considered the Registry as formed by two Sections, Rustic and Urban which later on would be sent to two different Registries, as indicated above.
Using the powers granted to him by the aforementioned Law No. 1180, the Minister of Justice merged several Registries which later on were decentralized again, so that no longer included the totality of a Judicial District [Partido Judicial] but only a municipality as it was finally provided by the laws creating the Registries of Land Tenure (for rural land) and of Urban Housing and of Unimproved Lots. Those laws will be alluded to below. This decentralization was facilitated by Art. 230 of the Mortgage Law of 1893 (Ley de Ultramar or Law for Overseas) which provided that a Book or one series of volumes be opened for each municipal district within the area covered by the Registry. 8
Paragraph (b) of the same Art. 1 authorized the Minister of Justice to freely appoint and fire the Registrars of the Property and the Chiefs of the [Notarial] Protocol General Archives, in both cases to be considered temporary personnel, and in the following paragraph (c) the Minister was empowered to appoint and fire the rest of the employees of both offices complying with the Labor Law in force. The fact that the appointment of all the personnel was considered as temporary and that there was no provision indicating how they would be appointed in the future suggests that a decision had already been made to create the Land Tenure Registries and the Registries of Property for Housing and Urban Lots which will also be dealt with below.
Law 1180 also authorized the Minister to appoint as Registrars of Property persons who had been Temporary Registrars or employees of any Registry of Property, even those who did not have a law degree. At the same time, the position of Chief of the General Archive [Notarial] of Protocol was also opened to lay persons. 9
The Registrars of Property and the Chiefs of the General Archives of Protocol and the rest of the employees in their offices would receive the salary to be decided by the Minister of Justice. This Minister would make a scale of fees of the amounts to be paid by each interested party for those services. That money would be kept under the control of the Minister in a Fund used for paying the salaries of the personnel and the expenses for the functioning of those offices.
The afore-mentioned Law abrogated the existing appeal against the decisions of the Registrars of Property before the Judge of the First Instance of the locality, and against which another appeal could be made before the Ruling Board of the Court of Appeals, against whose decisions yet another appeal was permitted, which was decided by the Ruling Board (Sala de Gobierno) of the of the Supreme Court of Justice. Instead of such appeals, the new law authorized an appeal before the Minister of Justice, whose decisions were final because no other appeal could be made against what he decided, neither in the Administrative Procedure nor in the Judicial Branch.
Another change introduced by Law No. 1180 was to abolish the bond to secure the payment to the interested parties of the indemnification to the prejudiced parties for acts or omissions committed by the Registrars of Property in the performance of their duties. Such liability could be construed as imposed on the Government if Art. No. 26 of the 1976 Cuban constitution 10 is applicable.
Law No. 1180 also provided that the Registry of Property books and documents and the General Archives of Protocols [Notarial Instruments] were to be transferred to the Academy of Sciences (in fact to the Historical Section of said Academy) whenever, after examination, they were declared of no use and value. This was the same as considering them of only historical value. The Registries of Property, though not yet abolished were reduced to small offices to record the few titles and documents which still could be considered recordable as survivors of the old regime. In order to keep the temporary Registrars and their subordinates busy, this same law put them in charge of the Registries of the “Estado Civil” (Vital Statistics). 11
A law enacted in 1976 12 granted to the Ministry of Justice the power to direct the technical aspects of the Registries activities. Using those powers said Ministry issued and Instruction 13 containing the rules for the reorganization of the Registries of Titles and the issuance of certificates and exhibition of the books of the Registry of Property. This Instruction empowered the organs of the Popular Power of each municipality to provide the services and activities related to the National Patrimony, the Registry system and the real property publicity. “This Instruction of the Ministry of Justice set forth what survived from the abolished Mortgage Law [which governed the Registries of Property] and its Regulations of 1893… and at the same time gave the Registrars of the Property the necessary information on what remained of the Registrar system after the blows of the Revolutionary Legislation to the mortgage credit and the Registries.” 14 The same Ministry was empowered with the methodological direction of the Registries of the Property by Law Decree 67 of 1983.
It is amazing that such abundant legislation was enacted and not enforced, as admitted by a government public official and legal writer who considers it a reason for the great reduction in the Registrar activity. 15
Finally, the second of the two General Housing Laws (No. 65 of 1989) transferred to the National Institute of Housing (Instituto Nacional de la Vivienda) all the powers and functions previously given to the Ministry of Justice regarding the National Patrimony and the Registry of Property. This happened, according to a Cuban legal writer, “after some kind of pilgrimage during which some Registries were transferred to the Academy of Sciences, which proves their passive nature and their relatively infrequent use.” 16 After acknowledging that the majority of the transfers of ownership made in the last years have not been recorded in the Registry of Property which has not been updated, the same author adds that the Registries of Property exist only “as offices for the recordation of some kind of titles on land” and that they “will not be apt to be used in the new Registry system which will be created for the control of real property in Cuba.”
Another Cuban legal writer ratified that the “old” Registry of Property still exists but with a precarious life. 17 He added that “the titles granted under the Law of Urban Reform were never recorded in said Registry and admits that said titles did not meet the requirements to be considered recordable because they did not include the description of the property, omitting not only the boundaries and the area but any description at all because there was no interest in recording them. “The Registry of Real Property was totally out dated regarding housing… after 25 years of new constructions which were never recorded and transfers of property made under the Law of Urban Reform without any recordings. 18
The same legal writer stated that it was necessary to create a new Registry “not as a means of legal guarantee (the best guarantee is the occupation by the owner) but as a means of urban control, because the nation [the government] needs to know everything regarding the housing fund, including its tenure; that is the reason why it convenient to create, for the purposes of urban control, a housing registry. But the old, anachronistic Registry of [Real] Property.” 19
Another Cuban jurist said that the recordations ordered by the Law of Urban Reform were never made “and in this manner the Registry of Property did not renew its function nor adapted its substance but continued surviving as a secondary source of documental evidence or, simply, as historical reference for the real property and real property rights of pre-revolutionary Cuba”.
The obsolescence of the Registry of Property in Cuba is shown also by the absence of any reference to the Registry of Property or to the Mortgage Law in the new Civil Code enacted in 1987. 20
II. The Registries of [Real] Property in Castro’s Cuba in 1993
A. The Land Tenure Registry
In 1983 the Law for the Organization of the Central Administration of the Nation 21 was enacted. It granted to the Ministry of Agriculture the powers to direct, carry out and control the implementation of the governmental policy regarding the land fund devoted to agriculture, cattle raising and forestry as well as any other agricultural activities including the sugar cane land which was controlled in every other aspect by the Ministry of Sugar.
In 1987 and using those powers, the Minister of Agriculture issued two resolutions numbered 597 and 598 22 of which he was the only signer. The first of said resolutions, No. 597 created the Land Tenure Registry which was structured in three levels, the Central, the Territorial and the Municipal, the last one subordinated to the Territorial and the latter subordinated to the Central. The Minister of Justice was totally excluded. Said resolution mentions as the only reason for the new Registry’s creation the control of the legal tenure of the land by means of the Registration of the Tenants in those offices. Resolution No. 598 contained the rules for the functioning of the Registry.
Resolution No. 598 of 1987 was abrogated in 1990 by a new resolution (No. 288) 23 which defined the Registry of Land Tenure as “an organized system to control the land tenure.” 24 In this new resolution the main functions of the Registry were set forth, the most important of all being “to keep updated the control of the land fund in the National, Territorial and Municipal levels.” 25 The Registry was given the power to “determine the legal situation of all kind of tenants”, 26 something that should have been reserved to the Courts of Justice.
The Registry must gather information to keep updated. 27 That information goes to files 28 and include any document brought by the tenants to the municipal office of the Registry 29 plus the findings of an investigation which must be done in each case by said office, 30 the opinion of the investigator and the sanctions imposed by the Registry to the tenants who do not comply with their obligations. This territorial office may order more investigations and will collect more evidence. Then the file is sent to the territorial office for its approval. A certificate of title is issued by the Registry and delivered to the tenant. This certificate is deemed to be the only document that may prove the legal tenancy of the land. This certificates expires at the end of each year and must be renewed again and again.
The role of the Registry is mainly to know who the legal tenants are in order to make periodic inspections of those tenants to verify how they comply with the obligations and prohibitions imposed on them; to check whether some unauthorized assignments of areas of land have been made or, in case of being approved, whether they have been notified to the Registry; to verify that the reasons why the usufruct of the land was given to the tenant still exist; and to check whether the land is duly used. A lack of compliance by the tenant may result in the revocation of the authorization to possess the land. In the case of small owners their titles can be revoked and considered as illegal tenants of the land. 31
The Minister of Justice has the power to amend or declare void any entries made in this Registry. 32 The Minister can also revoke the entries made in this Registry in favor of non-owner tenants.
In comparing this Registry with the old Registry of Property, a Cuban author admitted that the latter was essentially a registry of real property rights, being mainly a legal rights registry but divorced from the economic and physical aspects which are the most relevant aspects in the new Registry. 33
B. The Registry of Property of Housing and Unimproved Lots
At the beginning of this paper we stated that the provisions of the Law of Urban Reform of 1960 and of Law No. 1180 of 1965 regarding recordation in the Registry of Property and the creation of an Urban section in the Registries of Property were never enforced.
Chapter IX of Law No. 48 of 1984 provided for the creation of a Registry of Property of Housing to record the transfer of urban property. Such creation was conditioned to the issuance of regulations which would be dictated for the compliance of said chapters, something that never happened.
This 1984 General Law of Housing was abrogated in 1989 by a new Law numbered 65. 34 This law ratified the creation of the Registry of Property of Housing and unimproved lots but, again, the regulations necessary for the operation of the Registry 35 have not been promulgated.
A Cuban jurist and high officer of the government said that this Registry would not resemble the old Registry of Property because its purpose is not to guarantee the ownership of urban land, which is protected by the mere fact that the owner occupies it, lives “in it but not from it”, this phrase meaning that he uses the land for the only purpose of living in it but not to obtain a rent from it. The goal -he addsis only to guarantee [the accuracy] of the information [gathered by the government].
Another Cuban author praises the active nature of this Registry which is run by of the Municipal directions or branches of the National Housing Institute whose powers include the issuance of norms for the distribution, acquisition, use, maintenance, reparation and reconstruction of housing, the additions and constructions of new housing, including the assignment of unimproved lots, the control of the Housing Fund and the establishment and control of the urban and rural settlements. 36 The control of housing through the municipal branches of this Institute is such that it has authority to declare illegal the occupancy of a house and removing the illegal occupants back to their former house; 37 this is just an example of its ample powers not only on houses and lots but also on the persons of the tenants.
The powers of the Registrar include the authority to amend the measurements and boundaries of the land on which the houses are built.
C. Other Land Registries
A National Cadastre, meaning a registry of parcel plans and mapping which pre-existed the Revolutionary Government has acquired a great relevance in the Castro Regime which spent large sums of money on it. The National Cadastre operated under the control of the Revolutionary Armed Forces after the Institute which used to run it was dissolved. 38 In 1967 a Cuban Institute of Cartography and Geodesy was created to operate under the control of the Ministry of Armed Forces. 39 A National Commission of Cadastre was created in 1977. 40
The real properties which are not dedicated to agriculture and cattle raising and the urban properties which are not dedicated to housing but, in one and the other cases, are used by the government for enterprises like commerce and industry or for public services or occupied by political and community (“de masas”) entities, are recorded in a Registry of Real Property Basic Means (“medios básicos“). 41
- Enacted on May 17, 1959. See the third of its “Final Provisions”. (“Disposición Final”). ↩
- Ibid. ↩
- Dated October 14, 1968. ↩
- No. 17 of October 28, 1960. ↩
- No. 149, of March 20, 1966 section 15. ↩
- Rapa-Alvarez, Vicente, “La publicidad de los hechos y actos jurídicos,” in Revista Jurídica, published by the Ministry of Justice of the Republic of Cuba, year II, no. 5, Oct.-Dec. 1984, p. 192. ↩
- Law No. 1180 of July 1, 1965. ↩
- See Rapa Alvarez, supra note 8, p. 191. ↩
- Art. No. 2 of aforementioned Law No. 1,180. ↩
- Said Art. 26 provides that “any person suffering damages or loss of income or value (perjuicio) unduly caused by public officials or Government agents during the performance of their duty has the right to claim and obtain the corresponding reparation or indemnification as provided by law.” The author could not find any law regulating such liability nor providing who or what agency of the Government is liable for the payment. ↩
- Art. No. 1 (f) of Law No. 1180 of 1965. ↩
- Law No. 1323 of November 30, 1976. ↩
- Dated November 9, 1977. ↩
- Luis E. Catón-Blanco, “Lectures on Real Property and Real Property Rights,” editora de la ENSPES (mimiographed), La Habana, Cuba, 1982, p. 121 and 122. ↩
- Rapa-Alvarez, Supra note 8, p. 193. ↩
- Dávalo Fernández, La nueva ley de la vivienda, Ed. de Ciencias Soc., La Habana, 1990, p. 308. ↩
- Vega-Vega, Juan, Comentarios a la Ley General de la Vivienda, Ed. de Ciencias Soc., La Habana, 1986, p. 125. ↩
- Ibid. ↩
- Ibid. ↩
- The Spanish Civil Code in force in Cuba up to the enactment of Law No. 59 of July 16, 1987, devoted to the Registry of Property the four articles included in the only chapter of title VIII of Book 2 and mentioned either the Mortgage Law or the Registry in articles 108, 192, 1333, 1436, 1473, 1526, 1537, 1875, 1880 and 1949. ↩
- This Law Decree was dated April 19, 1983 and was subsequently amended by Law Decree No. 79 of March 28, 1984 to put the tobacco production under the control of the Ministry of Agriculture. ↩
- Both resolutions, numbered 597 and 598 were dated October 27, 1987 and published in the official paper (Gaceta Oficial) dated November 13, 1987. ↩
- This Resolution No. 288 was dated May 15, 1990 and was published in the Gaceta Oficial of May 17, 1990. ↩
- Art. 4. ↩
- Id. paragraph (a). ↩
- Id. paragraph (b). ↩
- Id. paragraph (ch). ↩
- Id. Arts. 15, 16 and 17. ↩
- Id. Art. 15. ↩
- Id. Art. 15. ↩
- Ibid, Art. 14. ↩
- Art. 48. ↩
- Cantón-Blanco, op. cit. supra, p. 114 to 116. ↩
- This new Law was enacted on December 23, 1988 and published in the Gaceta Oficial on February 8, 1989. ↩
- Arts. 116 and 120. ↩
- Art. 145. ↩
- Arts. 111 to 115. ↩
- Law No. 103 of February 23, 1959. ↩
- Law No. 1214 of July 19, 1967. ↩
- Decree No. 16 of December 16, 1977. ↩
- Law No. 1,028 of March 24, 1962 and Resolution No. 375 issued by the Ministry of Justice on September 29, 1975. ↩
- Law No. 1 of August 4, 1977 and Regulations contained in Decree No. 118 of September 23, 1983. ↩
- Law No. 2 of August 4, 1977 and its regulations contained in Decree No. 55 of November 29, 1979 ↩